The Department of Homeland Security ( DHS) is preparing to propose a rule that could change how high-skilled foreign professionals qualify for employment-based green cards, according to a report by Forbes. The rule aims to revise categories for individuals with extraordinary ability, outstanding professors, and researchers. According to the agency’s notice, it could be published by January 2026.
Rule to Modernize and Clarify Immigration Provisions
As per the DHS abstract, the proposed regulation will “update provisions governing extraordinary ability and outstanding professors and researchers; modernize outdated provisions for individuals of extraordinary ability and outstanding professors and researchers; clarify evidentiary requirements for first preference classifications, second preference national interest waiver classifications, and physicians of national and international renown.”
This means the government plans to redefine the eligibility and documentation standards that foreign professionals must meet for employment-based permanent residency. These updates are expected to address inconsistencies in how evidence is interpreted and improve the review process for petitions under the first and second employment preference categories.
Biden Administration’s Earlier Move to Attract Skilled Talent
The initiative follows earlier steps taken by the Biden administration to simplify the process for skilled foreign workers. On January 21, 2022, the administration issued new guidance encouraging employers and high-skilled professionals to use the O-1A visa and national interest waiver (NIW) categories more effectively.
The guidance was aimed at attracting global talent in science, technology, and research fields. It also aligned with the administration’s policy to strengthen the country’s innovation and competitiveness by easing visa pathways for individuals who could contribute to national interests.
Understanding the O-1A Visa and National Interest Waiver
According to the US Citizenship and Immigration Services (USCIS), the O-1A visa is for “individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry).”
A national interest waiver allows certain applicants in the employment-based second preference (EB-2) category to bypass the PERM labor certification process — a step that typically requires employers to prove that no qualified US worker is available for the position. By removing this step, applicants can file directly for an immigrant visa if their work benefits the national interest.
Sharp Rise in Applications After 2022 Guidance
Following the 2022 policy changes, applications for O-1A visas and national interest waivers increased significantly. USCIS data shows that O-1A filings rose from 7,710 in fiscal year (FY) 2021 to 10,010 in FY 2023, with the approval rate staying above 90%. The O-1A visa category does not have an annual cap, making it a more flexible option for qualified applicants.
Requests for national interest waivers also surged. According to an analysis by the National Foundation for American Policy (NFAP), receipts for NIW applications grew 51% between FY 2021 and FY 2022 — from 14,610 to 21,990. The upward trend continued in FY 2023, with applications climbing 81% to 39,810. However, approval rates for NIW petitions saw a decline during the same period.
Potential Impact on Future Green Card Applicants
The DHS has not yet released the full text of the proposed rule or its detailed requirements. However, immigration experts expect that the changes could tighten evidence standards and increase scrutiny for applicants seeking permanent residency through employment.
While the rule is expected to modernize existing procedures, it could also create new compliance burdens for applicants and employers. Immigration attorneys believe that clarity in evidentiary criteria may help reduce inconsistent decisions but could raise the threshold for demonstrating extraordinary ability or national importance.
What Comes Next
The rule is currently in the drafting phase and scheduled for publication in January 2026. Once published, it will be open for public comment before any final implementation. Stakeholders, including employers, universities, and immigrant advocacy groups, are expected to respond to the proposal once it is formally released.
If enacted, the new rule could reshape how high-skilled immigrants navigate the employment-based green card system — influencing both recruitment strategies of US employers and the career plans of global professionals seeking to settle in the country.
Rule to Modernize and Clarify Immigration Provisions
As per the DHS abstract, the proposed regulation will “update provisions governing extraordinary ability and outstanding professors and researchers; modernize outdated provisions for individuals of extraordinary ability and outstanding professors and researchers; clarify evidentiary requirements for first preference classifications, second preference national interest waiver classifications, and physicians of national and international renown.”
This means the government plans to redefine the eligibility and documentation standards that foreign professionals must meet for employment-based permanent residency. These updates are expected to address inconsistencies in how evidence is interpreted and improve the review process for petitions under the first and second employment preference categories.
Biden Administration’s Earlier Move to Attract Skilled Talent
The initiative follows earlier steps taken by the Biden administration to simplify the process for skilled foreign workers. On January 21, 2022, the administration issued new guidance encouraging employers and high-skilled professionals to use the O-1A visa and national interest waiver (NIW) categories more effectively.
The guidance was aimed at attracting global talent in science, technology, and research fields. It also aligned with the administration’s policy to strengthen the country’s innovation and competitiveness by easing visa pathways for individuals who could contribute to national interests.
Understanding the O-1A Visa and National Interest Waiver
According to the US Citizenship and Immigration Services (USCIS), the O-1A visa is for “individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry).”
A national interest waiver allows certain applicants in the employment-based second preference (EB-2) category to bypass the PERM labor certification process — a step that typically requires employers to prove that no qualified US worker is available for the position. By removing this step, applicants can file directly for an immigrant visa if their work benefits the national interest.
Sharp Rise in Applications After 2022 Guidance
Following the 2022 policy changes, applications for O-1A visas and national interest waivers increased significantly. USCIS data shows that O-1A filings rose from 7,710 in fiscal year (FY) 2021 to 10,010 in FY 2023, with the approval rate staying above 90%. The O-1A visa category does not have an annual cap, making it a more flexible option for qualified applicants.
Requests for national interest waivers also surged. According to an analysis by the National Foundation for American Policy (NFAP), receipts for NIW applications grew 51% between FY 2021 and FY 2022 — from 14,610 to 21,990. The upward trend continued in FY 2023, with applications climbing 81% to 39,810. However, approval rates for NIW petitions saw a decline during the same period.
Potential Impact on Future Green Card Applicants
The DHS has not yet released the full text of the proposed rule or its detailed requirements. However, immigration experts expect that the changes could tighten evidence standards and increase scrutiny for applicants seeking permanent residency through employment.
While the rule is expected to modernize existing procedures, it could also create new compliance burdens for applicants and employers. Immigration attorneys believe that clarity in evidentiary criteria may help reduce inconsistent decisions but could raise the threshold for demonstrating extraordinary ability or national importance.
What Comes Next
The rule is currently in the drafting phase and scheduled for publication in January 2026. Once published, it will be open for public comment before any final implementation. Stakeholders, including employers, universities, and immigrant advocacy groups, are expected to respond to the proposal once it is formally released.
If enacted, the new rule could reshape how high-skilled immigrants navigate the employment-based green card system — influencing both recruitment strategies of US employers and the career plans of global professionals seeking to settle in the country.
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